Center on Law and Security holds conference on law and strategy in era of evolving threats

On November 19, NYU Law’s Center on Law and Security gathered an elite group of national security practitioners, policymakers, judges, and other experts for a daylong conference on “Law and Strategy in an Era of Evolving Threats.” The event featured keynote addresses from John (Chris) Inglis, deputy director of the National Security Agency, and Lisa Monaco, assistant to the president for homeland security and counterterrorism. Panels throughout the day also addressed topics including the role of the courts in intelligence and national security, law and strategy in the executive branch, and national security law and the press.

Inglis began the day with a frank discussion of the NSA surveillance and intelligence-gathering methods that have dominated the news in the past few months, particularly focusing on the challenge of reconciling constantly advancing technology with the law. “We always have to err in favor of the law,” Inglis said, emphasizing that his operating principle is: “If it’s not written down that I can do it, I cannot.” Inglis also stressed that, although the agency has made surveillance errors, “we protect the privacy of innocent foreigners as much as we protect that of innocent Americans.”

Inglis attributed some of the injury to public confidence in US security agencies to the tendency of the media to focus on particular sound bytes, rather than lead an in depth conversation about surveillance and privacy. However, given the current spotlight on surveillance practices, Inglis suggested that this is a good moment in time to rethink the balance between privacy, security, and transparency.

Following Inglis’ address, Professor Samuel Rascoff moderated a panel of international judges in a lively discussion of the role of courts in overseeing national security agencies. Justice Rosalie Abella of the Supreme Court of Canada began with the assertion that the role of the courts in matters of security is no different than the role in any other issue. “Security is no different except that it has the elements of skepticism and fear… but I would argue that those are healthy elements in any constitutional adjudication,” she said.

Dorit Beinisch, former president of the Supreme Court of Israel and currently a Weinstein Family Distinguished Fellow at NYU Law, concurred with Justice Abella, adding, “It’s very hard for me to accept the American notion of many thresholds and bars that cause the courts to really not touch national security.”

Although Judge Brett Kavanaugh of the DC Circuit Court of Appeals also agreed that the court should not treat national security differently from other matters of law, he cited US Supreme Court Chief Justice John Roberts’ view that the court should act as an umpire—an interpreter, rather than a maker of law. “I don’t think it’s for the courts to decide that the president and congress have overreacted or underreacted to a threat,” he added.

Justice Brian Kerr of the Supreme Court of the United Kingdom weighed in with the idea that “the national security agencies and the courts should lean towards each other rather than find themselves in remorseless opposition.” Justice Kerr also touched on the question of secrecy in the courts, adding that he agreed with NSA Deputy Director Inglis that it is time for a fresh debate about resetting the balance between the need for transparency and the need for security.

Watch "The Role of the Courts in Intelligence and National Security" (1 hr, 39 min), moderated by Professor Samuel Rascoff of NYU Law and featuring: